In last year’s power outages an 87-year old person, living alone, without family, was left stranded. The first power outage came after a storm in October. Residents in some parts of the area were without electricity for two weeks. Then there was a second power outage that compounded the problem.
Imagine the disruption in a person’s life without electricity. No light, no heat, no refrigeration for food. In the case of this older person, with special dietary needs, with beloved pets, it was a disaster. When the person that walked the dog came to the house, 911 was called after discovering the elderly person on the floor and alone.
That began an escalation of events that first saw the person hospitalized for a time then shipped off to a long-term care facility. While the person had Medicare as well as supplemental insurance, the papers were not found. The lack of family, proper diet and drugs used by various medical providers, perhaps her cranky nature, resulted in application by the long-term care facility to the New York Supreme Court for guardianship proceedings.
During a seminar on aging, a White Plains, New York lawyer who developed an important Elder Law practice declared: “Do you want someone else to decide what is going to happen to you and your assets? If you become sick, disabled or mentally incompetent to handle your affairs the court will decide what to do. Who do you think the court will appoint? The judge will appoint a friend of his not yours.”
How do judges get where they are? In some states they are appointed by politicians. In some states they are elected. In New York most judges are elected, however, on that level voters do not know them. There is an election but judges do not really run as other politicians must. Judges are basically anonymous. Sure they are cleared by screening committees for character and fitness. The headline of the arrest of a judge in West Virginia that abused his power and pursued the husband of a woman he wanted with false accusations and influence is one clear example that shows that these screenings are meaningless.
“In the old days it was $100,000 contribution to the political club to get the party’s nomination for a Supreme Court Justice in New York,” a lawyer once in politics told me. “Now it’s more. There is no election. The political party in power nominates the judge and that person is elected. No Republican judge is ever elected in New York City. The judge that gets the Democratic nomination gets the job.”
In New York the Supreme Court is the court of general trial jurisdiction. It is not the highest appeals court. Two subsequent levels are called the Appellate Division then the Court of Appeals, New York’s highest appeal tribunal. It is therefore the Supreme Court that wields the most original power, thus the most patronage.
Appointment of executors, administrators, guardians and all manner of people yield patronage posts. A Supreme Court Justice is allowed one lawyer on staff, occasionally two, paid by the state, as law secretaries. In some cases the political party sends them around and the judge has no choice in the matter. Some judges complain that the person they get is not competent.
If the description of the secret payola for a political nomination existed, then one can imagine the nest of corruption it yielded. This would be especially true when it came to appointments where high fees can be skimmed off by politically connected lawyers that receive them.
Back to the Elder Law specialists seminar: “Once someone is declared incompetent then that person must go into court and prove they are now competent. They have to hire a lawyer to do that and sustain the burden of proof.”
With shelter and food and perhaps less medication, over the condition brought on by the stress of being without power, the elderly person has regained their faculties. The person walks, remembers important phone numbers, says that they are 99.9% even 100% with it and wants to reclaim life.
“I want to be examined by an impartial psychologist,” the person declared. The New York State Department of Mental Hygiene lawyer that represented the person’s interests at a hearing before a Supreme Court Justice stated that they no longer represent the person now that a guardian is appointed.
The person has assets including a house that has considerable value. In papers filed by the administrator of the long-term care facility, they want the person’s money for their services. That’s why they brought the guardianship proceeding. If someone wants your money and you are not able to handle your affairs, realize that they can go to court to have you declared incompetent. A stranger can be, and in this case was, appointed to take over your affairs and you are no longer a legal entity, just someone in storage.
The storage facility may or may not be adequate. Many care facilities that have been investigated under the federally funded Medicaid programs have been found to have engaged in fraud. Some even continued to bill the program for dead inmates. And that is how older persons are treated in some facilities, especially those that do not have family to care for them and supervise, on a daily basis, the medication given and care provided. Many long-term care facilities are operated on a for-profit basis. Federal investigations have revealed horrible abuses.
One thing is certain, we all get old someday. Do not count on the legal system to help. Prepare your affairs in such a way that if ever you become disabled, mentally or physically, your assets will not be dissipated by strangers. Some lawyers charge $350 per hour for their services and equally exorbitant fees for para-legals and secretarial fees.
Investigate wills and trusts with a legal expert in Elder Law. Review your health and insurance policies with a lawyer that specializes in the field of Elder Law. Determine whether long-term care insurance is warranted. Government programs such as Medicare give out after a specified time. Medicaid is a program that pays for all types of care for people without money. The rates are less for insurance companies, public and private, than private patient rates charged if people have assets.
Your church or favorite charity may get nothing, despite your will and good intentions, if a for-profit care facility draws down all of the money from the sale of your house before you are put on public assistance. If a person has planned at least 5 years in advance with a certain kind of trust, then those funds that have been set aside cannot be touched by Medicaid and are gone out of the person’s assets for Medicaid determination of eligibility.
The Gospel of John relates what Jesus said about aging, pertinent today as it was two thousnad and more years ago: “When thou wast young, thou girdest thyself, and walkest whither thou wouldest: but when thou shall be old, thou shall stretch forth thy hands, and another shall gird thee and carry thee whither thou wouldest not.” Planning is essential and good counsel is available from specialists in Elder Law. Often free seminars and consultations are offered by these legal experts. The key is not to wait until there is a power outage, literally or figuratively.
